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Written By Gopal Krishna on Tuesday, January 02, 2018 | 12:51 AM

A letter has been sent to Union Minister of Commerce and Industry informing him about the inadequate answer provided by his ministry in Lok Sabha regarding Alternative to Asbestos and Ban on Import of Asbestos.

In his ministry’s reply to the questions raised by Ponguleti Srinivasa Reddy and M K Raghavan, Members of Parliament on alternative to Asbestos and the ban of asbestos in India, it did not share relevant details with the Parliament.

1.Shri Reddy asked a) whether the Ministry of Commerce and Industry has approached the Union Finance Ministry to provide incentives to the alternatives of asbestos in order to refrain from making asbestos artificially cheaper as has been done in the past; and (b) if so, the details thereof ?

(Photo: Victims of primary and secondary exposure to Asbestos fibers in Ahmedabad)

Commerce and Industryministry did not inform the Parliament that that the 19 page long Vision Statement on Environment and Human Health of Union environment, forests and climate change ministry states: ‘Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out’. The relevant URL of Vision Statement on Environment and Human Health is available at www.envfor.nic.in/sites/default/files/visenvhealth.pdf .

The ministry did not inform the Parliament that HIL Ltd, a flagship company of the C K Birla Group, leader in the Building Material space in India has announced the commencement of commercial production of Non Asbestos Roofing Sheets (Green Roofing Solution) under the brand "Charminar Fortune". It is being manufactured at Kondapalli Plant, Andhra Pradesh with effect from 21st December 2017. The Kondapalli Plant has the capacity to manufacture 33,600 MT PA. "Charminar Fortune" is a new addition to the Company's Roofing products; it is Asbestos free and marketed under the brand "Charminar", one of the most trusted names for building products in the Country for its roofing sheets. It has excellent load bearing capacity, thermal resistance, sound proofing, fire resistance and a life of many decades. This advanced research-based, green roofing solution has been developed in-house by HIL. (Reference:http://www.business-standard.com/stocks/corporate-announcements/bse/259/19548536)

It is noteworthy that major manufacturers have replaced asbestos-cement roofing in over 60 countries that have banned asbestos as an unacceptable cancer risk to workers and building occupants. These WHO reports create a compelling logic for marketing safer substitute products. So far this has not been done because in almost all cases the companies selling the non-asbestos products have previously been involved in selling asbestos. Therefore, they do not say anything about the dangers of the asbestos products even as they market asbestos-free products.

It may be recalled that Navy officials objected to presence of asbestos in aircraft carrier Admiral Gorshkov which was inducted into the Indian Navy as INS Vikramaditya after asbestos decontamination.

It must be recalled that Union of India’s Budget 2011-12 had made reference to asbestos related diseases by including it under the Rashtriya Swasthya Bima Yojana to cover ‘unorganized sector workers in hazardous mining and associated industries like asbestos etc”.

In such a backdrop, there is an urgent need for the ministry to approach Union Finance Ministry to provide incentives to the alternatives of asbestos in order to refrain from making asbestos artificially cheaper as has been done in the past.

2.Shri Raghavan asked the ministry, “(a) whether the Government is aware that manufacture and usage of Asbestos has been banned worldwide for its ill-effects on health and if so, the details thereof; (b) whether the Government proposes to ban import of Asbestos in the country;c) if so, the details thereof and if not, the reasons therefor; and (d) the remedial steps taken/being taken by the Government in this regard?

The reply from the ministry reads: “There is no world-wide ban on manufacture and usage of asbestos. Countries like Russia, China, Brazil, Kazakhstan and Canada are large producers and exporters of asbestos.”

The reply does not disclose that Brazil’s Supreme Court has banned all kinds of asbestos to safeguard the health of Brazilians. The constitutional Supreme Court of Brazil decided the production and the selling are unconstitutional. The president of the Supreme Court observed, 'In concern of the environment, if any doubts, it must be prohibited so that the rights for us today and tomorrow won't be lost for the ones that come after us.' It held that the extraction, processing, use and marketing of all forms of asbestos, including white chrysotile asbestos violate the Brazilian federal constitution.

The reply does not disclose that on 15 December 15, 2016, Government of Canada

announced that “the Government of Canada will move forward with a whole-of-government approach to fulfill its commitment to ban asbestos and asbestos-containing products by 2018. The approach will be guided by science-based decision making and will be implemented in consultation with our partners. Canadians can be confident that the Government of Canada is making every effort to protect their health and safety, along with the health and safety of their families, co-workers and communities.” The announcement was made by Minister of Science, along with the Honourable Jane Philpott, Minister of Health, the Minister of Environment and Climate Change, and the Minister of Public Services and Procurement.

The announcement stated that “The comprehensive ban on asbestos will include: creating new regulations that ban the manufacture, use, import and export of asbestos under the Canadian Environmental Protection Act, 1999, the legislative framework that protects people from the risks associated with hazardous substances such as asbestos; establishing new federal workplace health and safety rules that will drastically limit the risk of people coming into contact with asbestos on the job; expanding the current online list of asbestos-containing buildings owned or leased by the Government of Canada; working in collaboration with our provincial and territorial partners to change the national, provincial and territorial building codes to prohibit the use of asbestos in new construction and renovation projects across Canada; updating our international position regarding the listing of asbestos as a hazardous material based on Canada's domestic ban before next year's meeting of parties to the Rotterdam Convention, an international treaty involving more than 150 countries that support listing asbestos as a hazard; and raising awareness of the health impacts of asbestos to help reduce the incidence of lung cancer and other asbestos-related diseases.

It further announced that the Government of Canada will work with the health, labour, trade and commercial sectors, among others, to fulfill its commitment to ban asbestos by 2018. The regulatory process will be open and inclusive and will allow for consultations with multiple stakeholders—including provinces, territories, communities, industry, scientists and health professionals—in advance of the ban being implemented. The result of the government's coordinated and comprehensive actions will ensure that the health and safety of Canadians is protected at home, at work and in their communities. It shared the fact that “Asbestos was declared a human carcinogen by the World Health Organization's International Agency for Research on Cancer in 1987. At the height of its use, asbestos was found in more than 3,000 applications worldwide; however, production and use have declined since the 1970s. Effective April 1, 2016, the Government of Canada introduced a ban on the use of asbestos-containing materials in all new construction and renovation projects under the purview of Public Services and Procurement Canada (PSPC). PSPC has published a National Asbestos Inventory of federal buildings containing asbestos that it owns or leases. There are no significant health risks if materials containing asbestos in homes are tightly bound and left undisturbed. The government participates in the Rotterdam Convention, whose objective is to protect human health and the environment by promoting informed decisions about the import and management of certain hazardous chemicals.” Its official announcement is available at https://www.canada.ca/en/innovation-science-economic-development/news/2016/12/government-canada-asbestos.html

3.With regard to question “whether the Government proposes to ban import of Asbestos in the country", the ministry said, “No”.

The ministry did not inform the Parliament that the International Agency for Research on Cancer (IARC) reconfirmed that all commercial asbestos fibers - including chrysotile, the most commercially used form of asbestos - cause lung cancer and mesothelioma. In addition, IARC newly confirmed that there is sufficient evidence that asbestos causes ovarian cancer and reconfirmed asbestos causes laryngeal cancer. World Health Organization estimates that asbestos claims 107,000 lives a year. Even this conservative estimate means that every five minutes a person dies of asbestos related disease. Asbestos of all kinds is banned in some 60 countries, including the European Union, Japan and Brazil. The Judicial Inquiry Commission headed by Justice J C Shah, a former chief Justice of India appointed by Government of India in 1977 to inquire into all the excesses committed during the period of Emergency (1975 - 77) noted in its report that during Emergency, the ruling party and its acolytes had proposed to put the opposition leaders in jails which had asbestos roofs. The recent estimate is that asbestos causes194,000 occupational deaths globally every year.

The ministry did not factor in the reply of the Union Ministry of Health and Family Welfare in the Lok Sabha wherein said, “The Indian Council of Medical Research (ICMR) has informed that major health hazards of asbestos include cancer of lung, mesothelioma of pleura and peritoneum and specific fibrous disease of lung known as asbestosis. All types of asbestos fibers are responsible for human mortality and morbidity. Studies have been carried out at National Institute of Occupational Research, an Institute of ICMR, Ahmedabad which show that workers when exposed to higher workplace concentration of asbestos fiber have higher incidence of interstitial lung disease and pulmonary function impairment. Directorate General Factory Advice Service and Labour Institutes, (DGFASLI) under Ministry of Labour & Employment has intimated data of workers suffering from Asbestosis in factories registered under the Factories Act, 1948.As per the information provided by DGFASLI, it is informed that 21 no. of Asbestosis cases were reported in Gujarat in 2010 and 2 cases in Maharashtra in the year 2012.” The reply is available here: http://pib.nic.in/newsite/PrintRelease.aspx?relid=104105

4.Commerce & Industry ministry did not factor in the fact that as Union Health Minister Smt. Sushma Swaraj informed Rajya Sabha that "Studies by the National Institute of Occupational Health, Ahmedabad, have shown that long-term exposure to any type of asbestos can lead to the development of asbestosis, lung cancer and mesothelioma'' on August 18, 2003.

5.The ministry have informed the Parliament about the remedial steps taken by the Government for regulation and safe use of asbestos in the country and cited provisions of the Factories Act, 1948 and rules framed there under, manufacture, handling and processing of asbestos and its products is declared as hazardous process and the Schedule XIV – Handling and Processing of Asbestos, Manufacture of any Article or Substance of Asbestos and any other Process of Manufacture or otherwise in which Asbestos is used in any form as a dangerous operation under section 87 of the Factories Act, 1948. The ministry has also submitted that “Government of India by Notification in Official Gazette has reduced the permissible level of Air borne Asbestos fibres in work environment to 20.1 fibre/cc.”

It did not inform the Parliament that more than 60 countries have imposed total ban on all kinds of “asbestos” products because the current health risks associated with the use of “asbestos” are not acceptable, “controlled use” is not possible. (Reference: www.cma.ca/cmaj/vol-164/issue-4/0489).

It did did not inform the Parliament that “WHO, in collaboration with the International Labour Organization and other intergovernmental organizations and civil society, works with countries towards elimination of asbestos-related diseases by: recognizing that the most efficient way to eliminate asbestos-related diseases is to stop the use of all types of asbestos.” With resolution 60.26, the World Health Assembly requested World Health Organization (WHO) to carry out a global campaign for the elimination of asbestos-related diseases "…bearing in mind a differentiated approach to regulating its various forms - in line with the relevant international legal instruments and the latest evidence for effective interventions…". Cost-effective interventions for prevention of occupational lung diseases from exposure to asbestos are among the policy options for implementing the "Global Action Plan for the Prevention and Control of Non communicable Diseases" (2013-2020), as endorsed by the Sixty-sixth World Health Assembly in resolution WHA66.10 in 2013. Eliminating asbestos-related diseases is particularly targeted at countries still using chrysotile asbestos, in addition to assistance in relation to exposures arising from historical use of all forms of asbestos. (Reference: http://www.who.int/mediacentre/factsheets/fs343/en/)

It did not inform the Parliament about the notification of Union Ministry of Labour and Employment dated January 23, 2012 constituting an Advisory Committee of 13 members to prevent exposure to asbestos by the workers in pursuance of the judgment of Hon’ble Supreme Court. There are four terms of reference (TOR) of this Advisory Committee. Two of these TORs deal with ‘ILO guidelines’ and ‘fresh resolution passed by ILO”. The reply does not recognize that the ‘fresh resolution passed by ILO’ refers to the above mentioned June 2006 resolution. In January 2012, Union Ministry of Labour set up this Advisory Committee to implement Supreme Court order issued 17 years ago since International Labour Organization (ILO) has also made certain specific directions vide its Resolution of 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos. In compliance of the six specific direction with the order of Hon’ble Supreme Court dated January 27, 1995 in the Writ Petition (Civil) N. 206 of 1986 to maintain the health record of every worker up to minimum period of 40 years from the beginning of the employment for 15 years after the retirement or cessation whichever is later. Hon’ble Court directed the Union and state governments in the Consumer Education and Research Centre (CERC) vs Union of India case “to review the standards of permissible exposure limit value of fibre… in tune with the international standards reducing the permissible limit”.

In its 1995 judgment, Supreme Court of India has held that “The development of the carcinogenic risk due to asbestos or any other carcinogenic agent does not require continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life. The exposure to asbestos and the resultant long tragic chain of adverse medical, legal and societal consequences, reminds the legal and social responsibility of the employer or producer not to endanger the workmen or the community or the society. He or it is not absolved of the inherent responsibility to the exposed workmen or the society at large. They have the responsibility-legal, moral and social to provide protective measures to the workmen and to the public or all those who are exposed to the harmful consequences of their products. Mere adoption of regulations for the enforcement has no real meaning and efficiency without professional, industrial and governmental resources and legal and moral determination to implement such regulations.”

The ministry did not share details which Dr. R.B. Raidas, Deputy Director General, Directorate General of Factory Advice Service & Labour Institutes. (DGFASLI) has revealed saying 36 out of 1000 workers have been found to be suffering from asbestos related diseases. He revealed that DGFASLI had studied some 8, 000 workers and found that some 228 workers were exposed. But he expressed his ignorance about whether they have been compensated. He shared this information at the 3-day International Meet on Climate, The Workplace and the Lungs”. Dr H N Saiyed, former Director, National Institute of Occupational Health (NIOH), Ahmedabad stated that paying compensation to the victims of asbestos related diseases is a long process. He added, asbestos does not have a threshold limit. The best way to stop the diseases is to stop its use. Politicians are hiding behind absence of data which is not being collected. He shared this at the conference. This conference was organized by Maulana Azad Medical College, New Delhi organised by Centre for Occupational and Environmental Health in partnership with Drexel University, School of Public Health, Collegium Ramazzini, Ministry of Environment & Forests, Ministry of Labour and Employment, Government of India and Heart of England, NHS Foundation Trust in December 2012.

It did not reveal that ghe government agencies like Directorate General, Factory Advice Service and Labour Institutes (DGFASLI) took note of Prevalence of Asbestosis and Related Disorders in an Asbestos Fiber Processing Unit in West Bengal as early as in 1996.

It is noteworthy that Labour and Employment Department, Government of Gujarat has submitted that “Asbestosis is declared as notifiable occupational diseases in Third Schedule under section 89 and 90 of the Factories Act. The workers working in the registered factories are eligible for compensation either under the Employees Compensation Act, 1923 or under the Employees State Insurance Act.” It has revealed that “22 workers of Gujarat Composite Ltd, Kaligam, Ahmedabad, who were suspected victims of asbestosis were sent for medical check-up to National Institute of Occupational Health. Out of them, following two workers were confirmed for Asbestosis by N.I.O.H.: (1) Shri Hazarilal Manraj and (2) Shri Sahejram B Yadav.” It has disclosed that “Letters dated 24/12/2002, 16/10/2006 and 19/1/2007 were issued to the Gujarat Composite Ltd. to pay compensation of Rs 1 lac to the above two victims as per the direction of the Supreme Court. Gujarat Composite Ltd. has denied to pay compensation to the above workers as the company has challenged the report of N.I.O.H.” It may be noted that Gujarat Composite Ltd (formerly named Digvijay Cement Company) appears to be attempting to hide behind myriad corporate veils by changing names and by outsourcing its work (to agencies like Apurva Vinimay and Infrastructure Division).

The ministry did not share the findings of Planning Commission’s 159 page report dated September 2001, which noted that “The workers are also exposed to a host of hazardous substances, which have a potential to cause serious occupational diseases such as asbestosis…” It has recorded that various studies conducted by the Central Labour Institute have revealed substantial prevalence of occupational health disorders amongst the workers such as Asbestosis. The prevalence rate for Asbestosis was reported to be 7.25%. It has been acknowledged that “At the same time the number of occupational diseases reported is very meager…This makes it evident that early identification of occupational diseases is required. It has recommended that “To meet these requirements, measures are needed for diagnostic facilities and appropriate training in the field of occupational health. Occupational health hazards and diseases to the workmen employed in asbestos industries are of great concern to the industries, Govt. and the public. The Honorable Supreme Court of India in its judgement dated 27th January, 1995 relating to the Public Interest Litigation No.206 of 1986 had given several directions concerning the protective measures to be taken against the hazards of exposure to asbestos at workplaces such as mining and manufacturing activities. In the light of Supreme Court directives, it is proposed to launch a comprehensive programme for the protection of the health of the workers engaged in hazardous industries with adequate mechanisms for monitoring of work environment and diagnosis and control of disease.”

It did not inform the Parliament that “Government of India is considering the ban on use of chrysotile asbestos in India to protect the workers and the general population against primary and secondary exposure to Chrysotile form of Asbestos” as per concept paper presented by Government of India at the two-day 5th India-EU Joint Seminar on “Occupational Safety and Health” during 19-20 September, 2011.

The ministry did not take note of the fact that Dow Chemicals Company, USA has set aside $2.2 billion in compensation fund to address future asbestos-related liabilities arising out of acquisition of Union Carbide Corporation and its Indian investments in 1999. Many manufacturers of asbestos-containing products have gone bankrupt in USA as a result of asbestos litigation. Union Ministry of Labour, Government of India should also set up a compensation fund to provide compensation to the asbestos victims of past exposure by making asbestos based companies liable for knowingly exposing workers, consumers and citizens to asbestos fibers.

It did not inform the Parliament about compensation fund for victims of asbestos related diseases which are incurable but preventable diseases like lung cancer, mesothelioma and asbestosis.

6.In its reply Commerce & Industryministry said, “Grant of fresh mining leases and renewal of existing mining leases for Asbestos was banned by the Ministry of Mines in the country on Health Grounds.”

But it did not disclose to the Parliament the contradictory position of the Government of India on asbestos given the fact that while the mining of asbestos has been technically banned by the government, but it allows its import and that even from the countries which do not prefer its domestic use. Is it the case that our own asbestos is scientifically established as poisonous but the foreign asbestos is non-asbestos? This kind of scientific position makes India a laughing stock in the comity of nations.

Commerce & Industry ministry's attention has been drawn towards the judgment in the asbestos case filed by the Consumer Education & Research Centre (CERC) (Verdict is available at: http://indiankanoon.org/doc/1657323/), Hon’ble Supreme Court of India directed all asbestos factories to keep the health records of their workers for 40 years and/or 15 years after their retirement. The environmental clearance conditions impose a duty on the asbestos factories to keep health record of workers but these conditions of the ministry are routinely violated with impunity. Hon’ble Court has also directed that a compensation of Rs 1 lakh be paid to the asbestos victims.

While India imports white chrysotile asbestos from countries like Russia, Brazil, Zimbabwe, Kazakhstan and others, the fact is that Brazilian Supreme Court has banned use of asbestos and declared it as unconstitutional. It is relevant to note that Europe has officially admitted that 15,000 people die per year (40/day) due to asbestos related diseases. All forms of asbestos cause asbestosis, pleural plaques/fibrosis, lung cancer, larynx and ovarian cancer, mesothelioma among workers and consumers. Further, also increased risks of gastrointestinal cancer and nonHodgkin lymphoma have been reported in asbestos workers. Given the fact that human biology is same across the globes no government can assume that Indians are immune to asbestos related diseases and deaths.

Unsound science has been put to use to deny compensation claims of people with asbestos-related diseases. Nature, the reputed science journal (Vol.468, 16 December, 2010 issue) observed, “Asbestos scandal Irresponsible policies could cause an epidemic of malignant lung disease. The minerals industry has long tried to convince regulators that white asbestos - or chrysotile - is safe when handled properly. It argues that only the already controlled forms - blue and brown asbestos, known collectively as amphibole - are of concern. To support this, industry advocates point to scientific data and studies. Yet although the relevant literature is a mire of conflicting results, this should not be seen as an endorsement of their position. Rather, it reflects a string of industry-sponsored studies designed only to cast doubt on the clear links between chrysotile and lung disease. These are familiar tactics and several countries, including Britain, have seen through them and made the correct decision to ban all forms of asbestos, all of which have been proven to be carcinogenic in humans.” (http://www.eesc.europa.eu/resources/docs/xaver_baur.pdf) Similar situation exists in India.

While on a visit to New Delhi, Dr Alec Farquhar as Managing Director, Occupational Health Clinics for Ontario Workers, Canada said, “We now have around 500 asbestos cancer cases every year in Ontario from a population of 13 million. If you (India) continue on your current path, you will multiply our death count by 100 times. That would be 50, 000 Indian workers dying every year from asbestos. In Ontario, we learned that safe use of asbestos is impossible. I urge you from the bottom of my heart, please do not make the same mistake as we made in Canada. Stop using asbestos and use a safe alternative.” It is clear that lack of documentation and lack of environmental and occupational health infrastructure does not mean lack of victims of asbestos related diseases.

The verdict of five judges of Japan’s Supreme Court of February 17, 2015 that has upheld a ruling that found asbestos used at a plant of Kubota Corporation caused fatal mesothelioma in a man who lived near the plant and ordered the company to pay ¥31.9 million in damages to his relatives. The petitioners were relatives of Kojiro Yamauchi, who died at age 80 after working for two decades about 200 meters from the Kubota plant in Amagasaki, Hyogo Prefecture. His relatives and those of Ayako Yasui, who died at age 85 having lived about 1 km from the plant, sought damages from both Kubota and the government. In October, 2014 the Supreme Court ruled that the government was responsible for failing to protect workers from exposure at asbestos factories in Sennan, Osaka Prefecture.

It has been noted that sooner or later, the asbestos industry will go bankrupt in India because they will have to pay huge amount of money in compensation. For every legal injury in the law there is a legal remedy. The ministry ought to make sure that victims of asbestos related diseases get at least monetary compensation as remedy.The asbestos industry must be persuaded to phase out in two phases. In the first phase the goal should be to eliminate use of chrysotile asbestos and to prepare a register of the number of exposed workers and consumers in the country. In the second phase, the goal should be to create incentives for the use of safer materials, ensure, create a registry of asbestos laden buildings and victims of asbestos-related diseases and ensure decontamination of the former and compensation for the latter.There is an immediate need to conduct an audit of the current status of the victims of asbestos related diseases from the government hospital records in the country and make it mandatory for medical colleges to provide training for doctors so that they can diagnose diseases caused by occupational, non-occupational and environmental exposures to killer fibers and substances.

India should not allow itself to be misled by asbestos producers like Russia in this regard now that Canada has rightly stopped mining of white chrysotile asbestos almost like India due its “deleterious” impact on health. It should learn from Brazil and South Africa who are members of BRICS and not from Russia and China.

Written By Gopal Krishna on Thursday, December 28, 2017 | 3:22 AM

On 22 December, 2017, three
MPs namely, Bhartruhari Mahtab, Rahul Ramesh Shewale and Sanjay Shamrao Dhotre asked
an unstarred question regarding surface water pollution from the Union Minister of
Environment, Forests and Climate Change in the Lok Sabha: (a) whether the
Government has made any assessment/ conducted any study to ascertain the
pollution level of surface water in the country;

(b) if so, the details
and the outcome thereof and if not, the reasons therefor;

(c) whether an
International Organisation viz., Water Aid has given any remarks regarding
pollution level of India’s surface water in the recent past and if so, the
details thereof along with the reaction of the Government thereto;

(d) whether the
Government proposes any comprehensive policy to deal with water pollution in
the country and if so, the details thereof with the time by which it is likely
to be implemented in the country; and

(e) the other steps
taken/being taken by the Government to keep a check on water pollution in the
country?

The Minister of State
In the Ministry Of Environment, Forest and Climate Change, Dr. Mahesh Sharma
replied, “Central Pollution Control Board (CPCB), State Pollution Control
Boards (SPCBs) and Pollution Control Committees are monitoring river water
quality at 1275 locations which indicate that there are 302 polluted river
stretches, which is primarily due to discharge of untreated municipal sewage
and industrial effluent.

Water Aid has not under
taken any independent assessment of surface water pollution in India and its
report is based on assessment of CPCB and other organizations.

Government has taken a
number of steps to control river pollution which include control of industrial
pollution under the provisions of Water (Prevention and Control of Pollution),
Act, 1974; river action plans for interception, diversion and treatment of
sewage; establishment of continuous water quality monitoring systems; directions
to the SPCBs under Section 18(1)(b) of the Water (Prevention & Control of
Pollution) Act,1974 to direct concerned agencies in the State/UT to develop
infrastructure for sewage treatment; consent management for compliance of
standards by SPCBs/PCCs to improve water quality of the rivers with respect to
industrial effluents; directions under Section 5 of the Environment
(Protection) Act, 1986 regarding treatment and utilization of sewage for restoration
of water quality of rivers.

Written By Gopal Krishna on Monday, November 13, 2017 | 12:15 AM

Even “controlled use of
asbestos” is deemed unconstitutional

“I lost my mother due to mesothelioma for no fault of hers.
we have not used asbestos at all however it seems the fibers have spread in the
environment. Only those who have suffered this dreadful disease can know the
pain and we have seen my mother go through enormous pain during these years. I
stay in mumbai and yes i have the medical records. There is no cure for
mesothelioma and i hope one day we find it.”

-----Amit Kumar Jain, September 8,
2017 in a written communication with the author

These days while India’s
ministry of railways is rightly busy removing asbestos from railway platform across
the country but one witnesses waste dump of broken roof sheets which is a
design feature of every asbestos based product strewn around on the station and
in nearby areas putting unsuspecting passengers and citizens at grave risk of
exposure to the hazardous mineral fibers banned in some 60 countries. Piyush
Goyal, the new railway minister needs to urgently ensure barricading of the
asbestos laden area to avoid any effect on passengers and locals in its surrounding.
.He must get a safety audit done so that only skilled and competent persons get
employed for removing hazardous asbestos sheets. Asbestos abatement and removal
must be carried out by a competent, approved asbestos removal contractor. Once
the asbestos has been safely removed, there has to be certification of a clean
air clearance. There must be a system for wrapping/disposal of removed sheets.
The disposal of asbestos debris requires its proper scientific landfilling. The
use of asbestos based products and technology carries continuing burden of harm
throughout its life cycle. Asbestos
mineral fiber of all kinds including white chrysotile asbestos has been
certified by the World Health Organisation (WHO) to be carcinogenic. Asbestos
related diseases are preventable but are incurable. The prevention can only
happen if one is saved from exposure to air borne asbestos fibers, which are
always in a state of decay and erosion even when it is mixed with cement. Such
fibers can be seen with naked eyes in the asbestos based roofs and other
products like brake shoe and brake lining in almost all the vehicles.

What aggravates the
situation in India is that among the most deprived and marginalized communities
as many as 16.4 per cent in the rural areas and 20 per cent in the urban areas
live and work under asbestos roofs. S0me 79 per cent of Indian Dalits live in
such houses. This came to light from the 2011 Census figures released on the
Scheduled Caste households by amenities and assets by the Office of the
Registrar General & Census Commissioner.

Having been the
chemicals minister, although Ram Vilas Paswan, Union Minister of Consumer
Affairs, Food and Public Distribution is aware of the hazards of asbestos, he
has not taken any step so far to save the consumers from asbestos products by
announcing ban on them.

Having served as the
Permanent Representative of India to the UN from 2009 to 2013, Hardeep Singh
Puri, the new Minister for Housing and Urban Affairs, must pay heed to this
unhealthy situation due to rampant presence of asbestos laden houses and
buildings in cities and across the country. Notably, efforts are underway to
make UN buildings asbestos free. As part of $2.1 billion renovation work from
2008 to 2014, the amount of asbestos that was removed from the United Nations
complex in New York City complex was enough to fill three football fields
fifteen feet high. The Geneva headquarters of the UN is also going to become asbestos
free after he United Nations General Assembly in New York approved the
renovation project for the Palais des Nations complex in Geneva. This complex hosts
around 10,000 UN employees, which is more than the official headquarters in New
York. The work has commenced this year and is estimated to cost $846.6 million.
A report presented by the UN Report of the Secretary-General in July 2000 had
undertaken the assessment of asbestos-containing materials at United Nations
buildings located in Geneva, Vienna and Nairobi and at regional commission
buildings in Addis Ababa, Bangkok, Beirut and Santiago and harmful effects of
such materials on the health of staff members, delegates and other persons working
in and visiting the buildings. Puri should order similar assessment for
buildings in India. He should write to all the state urban development
ministers and urban local bodies to stop usage of asbestos in all the
municipalities and for
some 7, 935 urban centres.

Although Narendra Singh
Tomar, Union Minister of Rural Development, Panchayati Raj, and Mines has been
apprised of the fatal consequences of continued use of asbestos because of
which his mines ministry has technically banned its mining, so far he has not
done anything to ensure that public health of rural folk is safeguarded. The minister should write to all the
Panchayats to refrain from procurement of construction of asbestos cements
sheets and other asbestos based products to ensure asbestos free villages.

Asbestos causes
mesothelioma (cancer of the thin membranes that line the chest and abdomen) and
cancers of the lung, larynx and ovary. India’s National Institute for Health
and Family Welfare estimates secondary exposure to asbestos used in
construction has resulted in higher incidence of cancer among those living
under asbestos roofs. It is a commentary on the scientific temper of the
country that even Yoga centres are being run under asbestos roofs like in
Jawaharlal Nehru University (JNU) and the premises of medical and engineering
colleges besides other public buildings which are laden with asbestos based
products. Prakash Javadekar, Union Minister of Human Resource Development ought
to intervene to ensure asbestos free educational institutions

On 24 August, 2017,
Constitutional Supreme Court of Brazil decided with 8 votes against 2 that the
Brazilian state of São Paulo has the right to forbid the production and selling
of white chrysotile asbestos, a carcinogenic mineral fiber. As many as 10
Brazilian states prohibit use of this mineral fiber because of the incurable
diseases caused by it. India’s Supreme Court and High Courts have consistently
expressed their serious concerns regarding exposure to these carcinogenic
mineral fibers and has asked the central and state governments to update their
laws as per fresh resolution of International Labour Organisation (ILO), which
has sought elimination of future use of white chrysotile asbestos to safeguard
human health. But the governments in India have not complied with its
directions so far.

Although mining of all
kinds of asbestos is technically banned in India. According to Indian Minerals
Yearbook published in December 2015 import of white asbestos from Russia,
Kazakhstan, Brazil and China continues. It endangers the public health of
present and future Indians.

Following the verdict,
Brazilian São Paulo state has withdrawn the controlled use of asbestos law for
the whole country. Other states will have to take similar action. Brazilian
Supreme Court has already said that the production and the selling are
unconstitutional. The President of the Supreme Court observed, “In concern of
the environment, if any doubts, it must be prohibited so that the rights for us
today and tomorrow won’t be lost for the ones that come after us.” Indian
courts too should adopt this universally accepted precautionary principle and
the inter-generational equity principle to save the public health of Indians
like the Brazilian Court.

It is clear that the
decision with regard to Brazilian São Paulo state has set an “important
precedent” because the Court has excluded the law that allowed controlled use
of this hazardous mineral fiber. The law that allowed usage of asbestos has
been deemed unconstitutional

The Federal Supreme
Court (STF) is the highest level of judicial system in Brazil, which is
responsible for determining the constitutionality of laws. This Court has held
that the extraction, processing, use and marketing of all forms of asbestos,
including white chrysotile asbestos violate the Brazilian Federal Constitution.

Responding to the
verdict, Fernanda Giannasi from Brazilian Association of exposure to asbestos
(ABREA), a renowned leader of global anti- asbestos struggles said, “There is
no more legal support to the controlled use of asbestos in Brazil. The
important decision taken on 24 August means that there are no obstacles for the
states and municipalities to prohibit asbestos. The public entities cannot give
lame excuses for their failure to enact and enforce laws to safeguard people
from exposure to hazardous fibers of asbestos.
Now that the Brazilian Court has decided on the constitutionality of the
matter, it is the prerogative of the Brazilian Parliament to prohibit use of
this carcinogenic fiber.” She said, "The victory at STF is the result of
extensive construction of social movements in defense of workers' health.” Fernanda Giannasi visited New Delhi in 2002
to ascertain the public health situation in the country and share her insights.

Notably, 10 Brazilian
states and more than 35 Brazilian cities have valid laws banning asbestos. This
verdict paves the way for the other cities and states to prohibit the toxic
mineral fiber. No one can cite possibility of “safe and controlled use” as a
ground to continue its usage of asbestos.

The core issue before
the Court was the constitutionality of federal law which allowed use with
restrictions on the exploitation and the use of asbestos in the variety of
chrysotile, it’s adherence to rights to life, health and the environment. The
validity of state laws and municipal authorities, who had banned white asbestos
in their respective territories while the federal law permitted, was also
before the Court that required ascertainment of the distribution of legislative
powers between the federal government, states and municipalities.

The trial was conducted
in two stages. At trial regarding the federal law authorizing the production
and consumption of asbestos, the Court built a majority pro-banishment, for
five (5) votes against 4 (four). Due to the prevention of two judges who had
issued opinions on the cause before taking their seats in Court, the quorum of
11 (judges) was reduced to only 9 (nine). Thus, it was not possible to achieve
the 6 (Votes) as required by the Constitution for a declaration on the
constitutionality of federal law have general effect and binding.

A second phase of the
trial undertook to resolve this impasse, to define in practice to achieve the
banning of all forms of asbestos in Brazil. When examining the text of the
state law of São Paulo that banned asbestos on its soil, the Supreme Court
stated, by eight (8) votes against 2 (two), the full acceptance of the legal
force of this measure.

The range of this
pronouncement is not limited to a state. It is applicable for the whole country
because it has assumed a national character. By a vote of 6 judges of the
current composition of the Supreme Court, the validity of the ban approved in
state laws is based precisely on the unconstitutionality of permissible federal
law. As a consequence of a mere formal question to prevent the participation of
a judge in the main proceedings, the unconstitutionality was not binding,
although in practice this is what will happen.

After the trial, the
President of the Court, Justice Carmen Lucia, clarified, through its press
office that the decision effectively overturned the authorization of the use of
white chrysotile asbestos throughout the national territory. During the trial,
the President of the Court recalled that asbestos compromises the future of
coming generations and defended its banishment "By the principle of
precaution, in case of environment, in doubt whether to seal".

Justice Celso de Mello,
dean of the Court said, "The Supreme Court declares the
unconstitutionality of this provision which permitted the chrysotile asbestos,
by an absolute majority, cut off from the universe national law a rule that
permitted, even if through controlled use, the use of asbestos. The use of
asbestos chrysotile is now sealed". Thus, the use of this type of asbestos
is completely sealed in the country.

The lawyer Roberto
Caldas, Mauro MENEZES and lawyers who represented before the Court the victims of contamination by
asbestos, organized around the Brazilian Association of exposure to asbestos
(ABREA) and the National Association of Attorneys of the work (ANPT) said, "It
is ended the great war by banning of asbestos. Now let's take care of the
aftermath: measures of achievement, service and repair just for
victims."For the lawyer Mauro MENEZES also advocate the banning of
asbestos in the gallery of the STF, the decision "reaffirms the vocation
Brazilian constitutional, to require that the economic development note social
guarantees and environmental population". Mauro MENEZES concluded, “The
situation reveals that the federal law is moribund, it is in a terminal stage.
When the Court declares its unconstitutionality, this law is no longer
efficient in the national judicial order”.

In the aftermath of this verdict, the states
and to the federal districts are under a logical and legal compulsion to bring
bills for the banishment of asbestos in the states which have no laws
prohibiting the carcinogenic asbestos as yet.

Brazil’s National
Confederation of the Industrial Workers (CNTI) had initiated an action with the
aim to get the law on the prohibition of asbestos in the state of São Paulo
declared as unconstitutional and revoked. The Court did not heed the request
and has endorsed the prohibition of this mineral fiber.

Brazilian Court found
that the asbestos based products are not safe for people’s health and to the
environment, which was in contradiction to the Constitutional provisions.

Taking cognizance of
these development and continued harm to Indians, it is high time Ravi Shankar
Prasad, Union Minister of Law and Justice introduced a bill to ban asbestos of
all kinds in India.

The recent estimate is
that asbestos is causing 194,000 occupational deaths globally
every year. Notably, South Africa banned
asbestos in 2008. Now that Brazilian court’s order has established the
illegitimacy of asbestos use, it is high time BRICS (Brazil Russia, India,
China and South Africa) governments make their present and future citizens safe
from hazards of asbestos fibers. If Jagat Prakash Nadda, the Union Minister of
Health and Family Welfare does not seek prohibition on the use of asbestos
based products to safeguard public health he will be deemed guilty of
dereliction of duty given the fact that Ministries of Environment and Labour
have sought ban on asbestos. He must ensure creation of environmental and
occupational health infrastructure and competent environmental and occupational
health doctors to diagnose the asbestos related diseases.

Having been a health
minister, Dr. Harsh Vardhan, the Union Minister of Science and Technology, Earth
Sciences and Environment, Forest and Climate Change must stop granting
environmental clearances to asbestos based factories to demonstrate consistency
in his ministry’s approach. Santosh
Kumar Gangwar, Union Minister of Labour and Employment must reiterate his
ministry’s resolve to save workers from asbestos related diseases by
eliminating asbestos related work from the industries.

Large reserves of
asbestos are located mainly in China, Kazakhstan and Russia. The world
production of asbestos was 1.9 million tonnes in 2013. Russia was the leading
producer and accounted for 53% production followed by China (21%), Brazil (15%)
and Kazakhstan (13%). So far countries like Brazil, China, India, Indonesia,
Mexico, Russia, and USA are yet to ban asbestos. Suresh Prabhu, the new
Commerce and Industry Minister ought to intervene at the earliest to safeguard
Indians from continued exposure to foreign asbestos fibers. He must resist the
unscientific approach of Ananthkumar, Union Minister of Chemicals and
Fertilizers who has made India into a laughing stock among the comity of
nations by inconsistently claiming that asbestos is not a hazardous substance
at the meeting of the UN’s Rotterdam Convention on Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
in Geneva although domestic laws are quite clear about it being a hazardous
substance. Prabhu must also persuade Arun Jaitley, the Union Finance and
Corporate Affairs Minister to provide incentives to the alternatives of
asbestos and refrain from making asbestos artificially cheaper as has been done
in the past.

Taking note of the
grave threats to the public health of people in

BRICS (Brazil Russia, India,
China and South Africa) countries, there has been a persistent demand for phase
out of asbestos industry in the country. These mineral fibers must be banned to
save citizens, consumers and workers who are dying a painful death due to
exposure to carcinogenic fibers of white chrysotile asbestos procured from
Russia, Brazil, Kazakhstan and China. Notably, the incurable asbestos related
diseases are caused primarily by the inhalation of asbestos fibers. These
diseases take up to 50 years after exposure to develop in a situation where
there is almost no infrastructure and skill to even diagnose these
environmental and occupational diseases. To begin with governments and local
bodies in India must stop procurement of asbestos based products. Nirmala
Sitharaman, Union Minister of Defence must make our military establishments
free of asbestos. Governments must make public buildings free of asbestos on a
priority basis. They must prepare a register of asbestos exposed persons and
asbestos laden buildings and announce a compensation package for the victims of
asbestos exposure. Notably, Calcutta High Court and Kerala Human Rights
Commission have already taken the first steps in this regard.